UK court defers to EU law in post-Brexit ‘hyperlinks’ case

On March 26, the UK Court of Appeal handed down its judgment in  Warner Music & Sony Music v TuneIn dismissing the appeal by TuneIn in almost all respects.

The case is a UK test case on infringement of copyright by communicating works to the public by hyperlinks. It is also important because it is the first time the UK court has had to consider whether it should follow the jurisprudence of the Court of Justice of the European Union (CJEU) in the area of “communication to the public” now the UK has left the EU.

The judges were unanimous in finding that it was not necessary or desirable for the UK Court to depart from the CJEU’s jurisprudence on the right of ‘communication to the public’, following Brexit.

TuneIn, a US technology company, operates a service where users can access radio stations broadcast around the world. In November 2019, the  English High Court held that, except in relation to radio stations that are already licenced in the UK, the TuneIn service infringed copyright in the  Warner and  Sony’s sound recordings by communicating works to the public in the UK by way of its TuneIn app and website which, at a technical level, operate by indexing and providing hyperlinks to foreign radio stations to users in the UK. Both parties appealed.

The Court of Appeal dismissed the appeal by TuneIn in all respects except in relation to liability for providing the app to UK users with the record function enabled. The Court of Appeal held that the judge at first instance was wrong to find that TuneIn was liable in relation to stations already licensed in the UK for “communication to the public” by providing the app to UK users with the record function enabled.

However, the Court of Appeal agreed with the judge at first instance that TuneIn would be liable for authorising infringement by the UK users and as a joint tortfeasor by providing the app to UK users with the record function enabled.

TuneIn argued that the case is one where the Court of Appeal should depart from the existing jurisprudence of the CJEU on ‘communication to the public’: an area of EU copyright law on which there are over 20 CJEU decisions.

Under the  EU Withdrawal Act 2018, after the transition period for leaving the EU ended on December 31, 2020, the Court of Appeal may depart from CJEU decisions on the same basis that the Supreme Court has had (and still has) power to depart from its own precedents.

The Court of Appeal was unanimous in holding that it should not depart from the existing CJEU jurisprudence, because “to do so would create legal uncertainty for no good reason”. Sir Geoffrey Vos, MR, held that this was a paradigm case in which a divergence would be inappropriate.

Firstly, because ‘communication to the public’ is an area of law derived from international copyright treaties, wherever possible the courts of states that accede to those treaties should strive to achieve harmonious interpretation of them. It was therefore undesirable for the UK to depart from the CJEU’s approach without exceptionally good reasons.

Secondly, in line with the Supreme Court’s long standing practice (and now the Court of Appeal’s practice), there was no basis to say that the CJEU’s approach was either impeding or restricting the proper development of the law, or leading to results that are unjust or contrary to public policy.

With the stamp of the most senior civil law judge in the country on it, this decision will reassure EU and international copyright owners, as well as businesses and consumers in the UK that Brexit doesn’t mean the UK is unlikely to go its own way on such a foundational aspect of copyright law for the digital age. Or at least not without legislation.

Penelope Thornton is a senior knowledge lawyer at Hogan Lovells. She can be contacted at: penelope.thornton@​hoganlovells.com

Alastair Shaw is counsel at Hogan Lovells. He can be contacted at: alastair.shaw@​hoganlovells.com